Tag Archives: Second Amendment

The courts in recent years have been nailing down ever more solidly the right to keep and bear arms.

In the District of Columbia the U.S. Supreme Court struck down restrictive ordinances that required that guns be kept at home disassembled or nonfunctional with a trigger lock mechanism, saying this violated the Second Amendment.

Justice Antonin Scalia opined that the Second Amendment reference to a “militia” is a prefatory clause that does not limit the operative clause of the amendment, which guarantees “an individual right to possess and carry weapons in case of confrontation.”

In the case of McDonald v. Chicago the high court overruled a 7th U.S. Circuit Court of Appeals and held that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense apply to the states. This overturned a Chicago ordinance banning the possession of handguns.

Justice Samuel Alito wrote that rights “fundamental to the Nation’s scheme of ordered liberty” or that are “deeply rooted in this Nation’s history and tradition” are appropriately applied to the states through the Fourteenth Amendment.

Now, a panel of the usually reliably liberal 9th U.S. Circuit Court of Appeals has ruled 2-1, in the case of Young v. Hawaii, that states may not prohibit open carry, though the ruling still lets states require permits for concealed carry.

“But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense,” writes Judge Diarmuid O’Scannlain. “We would thus flout the Constitution if we were to hold that, ‘in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion.’ … While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, ‘the enshrinement of constitutional rights necessarily takes certain policy choices off the table.’”

Nevada is one of 30 states that currently allow open carry, while 15 require permits, including neighboring Utah, for open carry and five states, including California of course, plus the District of Columbia prohibit open carry.

Judge Scannlain further pointed out that the right to self protection is one of those unalienable rights that existed prior to the Constitution and the Bill of Rights merely restrained Congress from infringing.

The ruling cited the English Declaration of 1689 as having enshrined “the right of having and using arms for self-preservation and defence.”

“In McDonald, the Court incorporated the Second Amendment against the States through the Fourteenth Amendment, invalidating a Chicago law that effectively banned handgun possession by residents of the city. …” the judge explained. “In determining whether the pre-existing right codified by the Second Amendment was ‘fundamental to our scheme of ordered liberty,’ the Court stressed the centrality of self-defense: ‘Self-defense is a basic right, recognized by many legal systems from ancient times to the present day …’”

Perhaps, such sound reasoning will deter Democratic legislators in 2019 from trying to restrict gun rights, as they have so often in the past.

Supreme Court Justice Clarence believes they do and makes a compelling argument.

This past week the U.S. Supreme Court refused to hear an appeal of a 9th U.S. Circuit Court of Appeals ruling upholding a California law requiring a 10-day waiting period for the purchase of any firearm. Justice Thomas penned a scathing 14-page dissent.

“The Second Amendment protects ‘the right of the people to keep and bear Arms,’ and the Fourteenth Amendment requires the States to respect that right …” Thomas writes. “Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review.”

Thomas says the 9th Circuit upheld the 10-day waiting law based solely on its own determination that it was “common sense,” without requiring any supporting evidence and without acknowledging a lower court’s factual findings that caused it to agree with plaintiffs that the law was unconstitutional when it was applied to people who already own guns, because it would not serve as a “cooling off” period for those who might use a firearm to harm themselves or others.

Thomas’ dissent notes that the 9th Circuit ignored the testimony previously given despite the legal requirement to weigh its validity. “California’s expert identified only one anecdotal example of a subsequent purchaser who had committed an act of gun violence, and the expert conceded that a waiting period would not have deterred that individual,” the justice observes, noting the appellate court allowed California to justify its waiting period with mere “rational speculation unsupported by evidence or empirical data …”

The courts are picking and choosing what constitutional rights to favor and which to ignore, Thomas argues, calling it “emblematic of a larger trend.” For example, the 9th Circuit struck an Arizona law that established a “cooling off” period for a woman seeking an abortion. It also invalidated a county ordinance requiring a five-day waiting period to obtain a nude-dancing license because it interfered with the First Amendment right of free expression. In another case, the 9th held that laws embracing traditional marriage failed because they were based on no evidence other than speculation, though such law reflects “thousands of years of human history in every society known to have populated the planet.”

Thomas does not let his own court off without a few verbal wrist slaps. He notes, “We have not heard argument in a Second Amendment case for nearly eight years. … And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment — even though our jurisprudence is much more developed for those rights. If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari.”

The four liberal members of the court are singled out for chiding by Thomas. He says those four would have agreed to hear a case involving a 10-day cooling off period for abortion or a case involving a 10-day cooling off period for publication of racist articles or a case involving even a 10-minute delay at a traffic stop while a dog sniffed the vehicle.

“The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights,” Thomas writes. “The right to keep and bear arms is apparently this Court’s constitutional orphan.”

All enumerated rights in the Constitution should be accorded their proper respect and none relegated to a second-class status, subject to different standards.

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